Judge Gives Man Paralyzed in Ferry Crash Highest Award So Far

By ANDY NEWMAN

Published: September 18, 2008

A few weeks after the 2003 Staten Island Ferry crash, which killed 11 people and injured scores more, the city asked a judge to limit its liability in the accident to $14.4 million, based on a 19th-century maritime law that ties a boat owner's liability to the value of the boat.

The answer that came back last year from a federal judge was a resounding no, owing to what the judge held was the city's negligence. With 40 of the more than 170 lawsuits still to be resolved, the city's tab for the crash continues to balloon.

So far, the city has agreed to pay $54.3 million to the victims and their families. And on Wednesday, in the first of the ferry suits to go to trial, the city's liability leapt to $72.6 million when a different federal judge in Brooklyn awarded $18.3 million to a former fish-market worker paralyzed in the crash.

The award granted to the worker, James McMillan Jr., 44, of the Bronx, by Judge Jack B. Weinstein of Federal District Court, is more than double the highest amount received so far by any of the 130 victims who settled before trial.

If it stands -- lawyers for the city indicated to the judge on Wednesday that they planned to appeal -- it would be the highest judgment ever against the city in a personal injury case, the city Law Department said.

The Law Department declined to comment on the growing cost of the ferry litigation.

It was unclear what effect Mr. McMillan's case would have on the remaining 40 ferry cases. The city had offered him $10 million, so by taking his case to trial he increased his award by 83 percent. The jury in Mr. McMillan's case issued an advisory verdict of $23 million last week, but Judge Weinstein reduced it Wednesday.

The judgment comes as the city faces suits over numerous high-profile cases, including crane collapses this year, a steam pipe explosion in 2007 and the Sean Bell shooting in 2006. The city has set aside $658 million for the 2009 fiscal year for payouts in suits against it, down half a percent from fiscal year 2008 but up 17 percent from 2007, according to the Independent Budget Office.

Despite Mr. McMillan's large award, lawyers for the city and some of the victims said they did not expect a raft of eight-figure judgments to follow. Mr. McMillan, who lost the use of his arms and legs, was the passenger hurt worst in the crash and was likely to recover the most money -- in lawsuits, catastrophic injuries typically result in higher judgments than deaths. The pending cases include those of four of the dead.

After the trial, Judge Weinstein also reduced the fee to Mr. McMillan's lawyer, Evan E. Torgan, to 20 percent of the judgment, rather than the standard one-third personal injury lawyers receive, a move that Mr. Torgan and other personal injury lawyers said could have a ''chilling effect'' on lawyers' inclinations to take ferry cases to trial.

The crash of the ferry, the Andrew J. Barberi, into the dock at Staten Island on Oct. 15, 2003, with about 1,500 passengers aboard, was one of the worst transportation disasters in the city's history. The assistant captain operating the ferry blacked out at the wheel.

The city was held liable for the crash because there were not two captains in the pilot house at the time of the crash, as required by city rules. The pilot who blacked out, Richard J. Smith, and the city's ferry director, Patrick Ryan, both pleaded guilty to negligent manslaughter.

Mr. McMillan, who worked in the Fulton Fish Market, was standing near the bow when the accident occurred. He was pinned facedown by debris and several bones in his spine were crushed, rendering him permanently quadriplegic.

He now requires assistance and physical manipulation by an aide for even the most basic acts, court papers say. He suffers migrainelike headaches and cannot regulate his body temperature, among other complications.

The jury awarded him $10.3 million for future medical expenses, $685,000 for past medical expenses, $7.4 million for future pain and suffering and $4.6 million for the pain and suffering he had experienced so far. Judge Weinstein reduced the award for future medical expenses to $5.6 million but left the rest of the verdict intact.

Mr. Torgan, Mr. McMillan's lawyer, said that he and his client could live with the reduced award.

''I'm not criticizing the judge's reduction,'' Mr. Torgan said. ''He has the worldview of a federal judge, not as the conscience of the community as a jury does.''

Mr. Torgan was less sanguine about Judge Weinstein's decision to slash his fee from one-third to 20 percent after the trial, which reduced his paycheck to $3.7 million, from $6.1 million. ''I do think it's unfair,'' Mr. Torgan said at the judge's hearing on Wednesday ''that lawyers who go to trial should get their fee cut and those who don't go to trial don't get their fee cut.'' He noted that Mr. McMillan had sworn in an affidavit that he believed Mr. Torgan was entitled to the one-third fee he had agreed upon.

The president of the state Trial Lawyers Association, Nicholas Papain, called Judge Weinstein's fee reduction ''highly unusual and also very unfortunate,'' adding, ''It's only through the contingency fee system that any client, no matter how rich or how poor, can get the representation that they deserve.''

Judge Weinstein told Mr. Torgan that he had declined his invitation to submit papers justifying his fee and added that Mr. McMillan was welcome to rectify the situation himself.

''If the client should give you a gift of two and a half million dollars,'' he told Mr. Torgan, ''I'm not approving or disapproving it.''